Part I: Recognition and usage
30
To foresee, see and remedy: state
responsibilities for investigating torture
By Victor Madrigal-Borloz
Principal Human Rights Specialist,
Inter-American Commission
on Human Rights
Upon allegations of torture, states have an obligation to initiate a prompt and impartial investigation. This rule, enshrined
in the UN Convention against Torture, is a general principle
of international law binding at all times. To comply with this
duty, states must put in place conditions conducive to efficient
and effective investigations, punishing those responsible and
providing redress to victims.
These conditions depend on a framework wherein a state
considers torture improper by all legal standards, discourages its use by all means available and establishes the structure
through which allegations of torture will be effectively documented:
• Legislative action must provide a legal frame of reference for identifying, prosecuting and curtailing the
practice of torture. Compliance with this obligation
imposes on states the duty to coherently implement
international obligations by adopting domestic legislation that defines the crime of torture. Further, legislative action must help eliminate obstacles to prosecution, such as blanket amnesty, statutes of limitation
or the establishment of exclusions of responsibility.
Time after time, prosecutors and judges dealing
with cases of torture face hindrances due to the absence
of detainee records in places of custody and detailed
medical examinations documenting the physical state
of detainees who are placed under the custody of the
state. Hence, regulations must include the creation and
maintenance of records to ensure that detainees are
examined while in the custody of any state authority,
whether in police offices, military facilities or penitentiary centres, be it in remand, under sentence or upon
entry into such a centre.
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